Dancy v. State
| Decision Date | 06 December 1899 |
| Citation | 53 S.W. 886 |
| Parties | DANCY v. STATE. |
| Court | Texas Court of Criminal Appeals |
This case was affirmed at a former day of the term, and now comes before us on motion for rehearing. In this motion appellant insists that a rehearing be granted on the ground that the proof fails to show such a character of bailment as is the subject of embezzlement. He insists in this connection that the prosecutor's own testimony shows that he was a partner with defendant in purchasing cattle; that he furnished the money, to wit, $300, and defendant was to buy the cattle, and they were to divide the profits arising from the investment; and he refers us to Reed v. State, 16 Tex. App. 586. We have examined the record on this question, and find this language in the evidence of the prosecutor, Forrester: "The agreement was that I was to have one-half of the profits made on the cattle to be bought with the $300 as well as with the $200." This is all the testimony bearing immediately on this subject, and there is nothing in the record controverting it. So we are confronted with the bald proposition whether or not this arrangement made with regard to the fund of $300 is such a bailment as is the subject of embezzlement under our statutes. We think not. On the contrary, it constituted appellant and the prosecutor partners. As such, appellant received the $300 for investment in cattle, and he and prosecutor were to share the profits arising from the sale of the cattle. From the moment the fund was delivered to the prosecutor, he had an interest therein, and had a right to retain and control it. While, in a larger sense, the transaction might be characterized as a bailment, still it was not such a bailment as is contemplated by our statutes on the subject of embezzlement. This question was thoroughly discussed in Reed v. State, supra, and it is not necessary here to do more than to refer to that decision. Because, in our opinion, the fund of $300, under the facts of this case, was not such a bailment as is the subject of embezzlement, the motion for rehearing is granted; and the judgment is reversed and the cause remanded.
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